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Reservation To PH in Promotion by Bombay High Court
Reservation To PH in Promotion by Bombay High Court
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
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ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO.106 OF 2010
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…
National Confederation for Development
of Disabled and another ...Petitioners
v/s.
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Union of India and ors. ...Respondents
…
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Ms.Gunjan Mangla i/b Mr.Rohit Mahadik for petitioners.
Mr.Rajeev Chavan with Mr.H.V.Mehta for the respondentUoI.
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Mr.G.W.Mattos, AGP for State.
...
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CORAM: MOHIT S. SHAH, C.J. &
M.S.SANKLECHA, J.
DATE : 4 December 2013
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P.C.:
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By consent of parties, petition is taken up for final hearing.
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3. This petition was filed on 8 December 2010.
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4. In the affidavitinreply filed by Under Secretary in the
Union Public Service Commission on 1 March 2011 and in the affidavit
inreply dated 20 April 2012 filed by Under Secretary in the
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Department of Personnel and Training, Government of India, it was
contended that provisions of Section 33 of PWD Act provides for
reservation for the persons with disabilities only in the matter of
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appointment to the vacancies in the establishment. It does not provide
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for reservation in the matter of promotion. It was further contended
that such reservation is applicable for persons with disabilities in Group
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“C” and Group “D” as provided in the Office Memorandum dated 20
November 1989 and in the subsequent Office Memorandum dated 29
December 2005 it is provided that 3% of the vacancies in case of
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promotion to Group “C” and Group “D” posts in which the element of
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direct recruitment, if any, does not exceed 75%, shall be reserved for
persons with disabilities. It is, therefore, submitted that reservations
for persons with disabilities were never available in Group “A” and
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Group “B” posts. It is further contended that the whole scheme of the
cadre management of officers appointed by promotion to the
promotion quota of an All India Service is quite different in nature from
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5. In any view of the matter, nothing is brought to our notice
indicating that posts in the Indian Administrative Services are excluded
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from reservation for persons with disabilities. In fact, in Government of
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India v/s. Ravi Prakash Gupta and anr. (2010) 7 SCC 626, the Supreme
Court specifically dealt with the question of reservation in the matter of
appointment to All India Service and held that reservation was
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applicable to posts in Groups “A”, “B”, “C” & “D”. The Supreme Court
confirmed the decision of the High Court and issued mandamus to the
Central Government to offer the writ petitioner appointment to one of
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the reserved posts by issuing appropriate appointment order in the
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Indian Administrative Services.
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6. In the said decision the Supreme Court also noted in paras
20 and 26 that neither Section 32 nor Section 33 of the PWD Act make
any distinction with regard to Groups A, B, C and D posts. It was
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further noted that proviso to Section 33 does empower the appropriate
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Government to exempt any establishment from the provisions of the
said section, having regard to the type of work carried out in any
department or establishment. No such exemption was brought to the
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notice of the Supreme Court on behalf of the Government of India. Nor
has any such exemption been brought to our notice.
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7. In view of the above, we have to proceed on the basis that
the reservation is available for Group A and Group B posts as well and
the same would, therefore, include posts in the Indian Administrative
Services.
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posts to be filled by promotion are also available for reservation.
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Learned counsel submits that the case of Ravi Gupta (supra) was
concerned with direct recruitment to the Indian Administrative Services
and not with regard to promotion.
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9. Learned counsel for the petitioners has, thereupon, invited
our attention to the recent judgment of three Judge Bench of the
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Supreme Court in Union of India v/s. National Federation of the Blind
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& ors., dated 8 October 2013.
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10. In the said decision, three Judge Bench of the Supreme
Court has in terms held that Section 33 of the Act establishes vividly
the intention of the legislature viz., reservation of 3% for differently
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abled persons has to be computed on the basis of total vacancies in the
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strength of a cadre and not just on the basis of the vacancies available
in the identified posts. The Supreme Court analyzed the provisions of
Section 33 of the Act and arrived at the following conclusion:
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“Thus, after thoughtful consideration, we are of the view that the
computation of reservation for persons with disabilities has to be
computed in case of Group A, B, C and D posts in an identical
manner viz., “computing 3% reservation on total number of
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11. In view of the aforesaid decision of the Supreme Court, it
is clear that reservation has to be computed with reference to total
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number of vacancies in the cadre strength and, therefore, no distinction
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can be made between the posts to be filled in by direct recruitment and
by promotion. Total number of vacancies in the cadre strength would
include the vacancies to be filled in by nomination and vacancies to be
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filled in by promotion.
12. The Supreme Court has given following directions to the
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Government of India to ensure proper implementation of the
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reservation policy for the disabled and to protect their rights:
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“54. In our opinion, in order to ensure proper
implementation of the reservation policy for the disabled and to
protect their rights, it is necessary to issue the following
directions:
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subsequent Oms consistent with this Court's Order within three
months from the date of passing of this judgment.
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disabilities in the matter of promotion to posts in the Indian
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Administrative Services by applying the Office Memorandum dated
29 December 2005 and subsequent Office Memorandum consistent
with the aforesaid judgment dated 8 October 2013 of the Supreme
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Court and accordingly give benefits of the reservation with effect from
the date of issuance of the said Office Memorandum dated
29 December 2005.
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14.
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Writ petition is, accordingly allowed in the aforesaid terms.
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CHIEF JUSTICE
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(M.S.SANKLECHA, J.)
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